2022/2023

ARMED CONFLICTS AND INTERNATIONAL

HUMANITARIAN LAW
LUCÍA MANTECON

LUCÍA CAÑADA SANZ

URJC
IIRR
INTRODUCTION STRATEGY AND THE NATURE OF WAR
HUMAN NATURE EXPLANATION OF WAR
Knowledge or instinct?

What make human beings different from animals? Most of our behavior is learned rather
than instinctive

Ongoing debate about the relative importance of 'nature' versus 'nurture' (heredity versus
environment) as a determinant of human behavior

Is war an example of innate or learned behavior?

If it is innate then we must accept it (biological evolution is too slow to modify it) If it is
learned, however, then it can be unlearned (hope for us all, yeah)

Liberal thinkers importance of nurture + attracted to the idea that aggression and
war can be tamed

Conservative thinkers throw their weight behind nature + skeptical about the
possibilities of ridding the world of war.

INTERNATIONAL RELATIONS AND ARMED CONFLICTS

“Strategy offers a toolkit (set of resources) that can be used to analyse problems of war
and peace” Thomas G. Mahnken

 Peace is included because sincethe emergence of nuclear weapons, strategy is also

linked to peace
 Strategy has multiple representations. More than just military strategy
 WAR: No common answer + used to describe many big crimes realities
Examples: total/ limited; regional/world; conventional/nuclear; high/low-
technological; interstate/civil insurgency/ethnic/religious/political etc.

MIILITAR STRATEGY
WHAT IS STRATEGY (TRADITIONAL APPROACH)

 The study of war and military campaigns

 The application of military power to achieve political objectives
  The theory and practice of the use, and threat of use, of organized force for
political purposes” (Gray, 1999)

STRATEGY

Both peacetime and wartime application.

We can use peacetime to prevent future conflicts.

STRATEGY SHOULD BE STUDIED FROM AN

INTERDISCIPLINARY PERSPECTIVE

How to fight and win wars multiple definitionns

How to fight and win wars

COMBAT-CENTRIC AMBIGUOUS RELATIONSHIP TO

WAR

Decisions should be made while the “Strategy is the art of creating power” (Sir
conflict develops L. Freedman)

Focus on the specific features of that “Strategy is ultimately about effectively

concrete conflict at a certain point of time exercising power” (G. D. Foster)

Strategy [is] the use of engagements for the

object of war” (C. von Clausewitz)
“Strategy is the practical adaptation of the
means placed at a general’s disposal to the
attainment of the object in War” (H. von
Moltke)
 PLAN CENTRIC A PROCESS FOCUSED CONTINUOUS
ADAPTATION (MORE DINAMIC
PLAN)

Focus in the preparation of the actions that Strategy is a process of continuous

are going to take place + previously adaptation to new situations
organized

Strategy is a plan of action designed in “Strategy is a process, a constant

order to achieve some end; a purpose adaptation to the shifting conditions and
together with a system of measures for its circumstances in a world where chance,
accomplishment” (J.C. Wiley) uncertainty, and ambiguity dominate” (W.
Murray and M. Grimsley)

“Strategy must now be understood as Strategy is “the art of the dialectic of force,
nothing less than the overall plan for or, more precisely, the art of the dialectic
utilizing the capacity for armed coercion” of two opposing wills using force to
(R. Osgood resolve their dispute” (A. Beaufre)

STRATEGY IS ETERNAL

Strategy is about how to fight wars in the most efficient manner. It is not just achieving
the main objective but doing so with the less costs as possible

 Power issue
 Eternal and universal
Valid at all times+ apply to all cases
 Why eternal? The nature of war is eternal because it is and will always be a human
activity
 What changes? The character of war and how war is conducted (how, by whom,
what ends)
CHARACTER OF STRATEGY

Strategy is ultimately about how to win wars

Any discussion of strategy must therefore begin with an understanding of war

CARL VON CLAUSEWITZ (1780-1831) – THE NATURE OF WAR

“War is thus an act of force to compel our enemy to do our will”

“No one starts a war - or rather, no one in his senses ought to do so,-
without first being clear in his mind what he intends to achieve by that
war and how he intends to conduct it”

"War is merely the continuation of policy by other means"

Strategy is a rational process > Politics > War

Political conflict: at least two actors

Anything can happen and strategy can change. Even rational strategy can fail in
execution.

The problem is not in the theoretical part, but the practice Strategies are designed by
experts (near to power) what leads them to take bad strategies.

WAR - KILLING AND DYING

“Kind-hearted people might of course think that there was some ingenious way to
disarm or defeat an enemy without too much bloodshed, one might imagine that this is
the true goal of the art of war. Please send as it sounds, it is a fallacy that must be
exposed: war is such dangerous business that the mistakes which come from kindness
are the very worst”

If you go to war = go with everything

Destruction of the army= destruction of the enemy key to victory

Importance of violence to warfare: enemy army as usual centre of gravity

SUN TZU (544-496 B.C) THE ART OF WAR

First theorist of strategy One of the first realist scholars in IR

WAR

“The supreme art of war is to subdue the enemy without fighting”

Use of force as a last resource +achieve objectives without violence

“To win one hundred victories in one hundred battles is not the acme of skill. To subdue
the enemy without fighting is the acme of skill”

War as a search for comparative advantage: success in war is less a matter of destroying
the other army (killing and dying) than destroying their will to fight.

“In the art of war there are no fixed rules” + art than a science

Interaction with the enemy makes difficult to achieve objectives

STRATEGY

In the field of strategy, anything can happen, it is better to not create norms

Most successful strategies: emphasize in psychology and deception

+ Intelligence: knowing your enemy + strength is relative and not based on absolute
capabilities

Best strategy:

1. Attack the enemy strategy

2. Attack is allies

3. Destroy the enemy’s army

“If you know your enemy and yourself, you need not fear the result of a hundred battles.
If you know yourself but not the enemy, for every victory gained you will also suffer a
defeat. If you know neither the enemy nor yourself, you will succumb in every battle"
LESSON 1. THE ARMED CONFLICTS IN THE XXI CENTURY
THE PROHIBITION OF THE USE OFFORCEIN INTERNATIONAL LAW

INDEX: LESSON 1. THE ARMED CONFLICTS IN THE XXI CENTURY

 The prohibition of the use of force in international law

I. The prohibition of the use of force, the concept of aggression and exceptions to the prohibition
II. The prohibition of the use of (armed) force: the scope of article 2.4 of the United Nations
Charter
III. The concept of aggression in the United Nations Charter system
IV. Exceptions to the principle of prohibition of the use of force
 The right to legitimate individual and collective defense.
 The collective security system: the use of armed force within the framework of Chapter VII
of the UN charter.
 Peacekeeping Operations: multidimensional and multilevel stabilization missions.
V. The role of the Rules of Engagement: ROE. The new armed conflicts
 The new armed conflicts

HISTORICAL REVIEW
USE OF FORCE THROUGH HISTORY

Nowadays, the use of force is banned. However, it wasn't always like that.

Clausewitz: "War is politics by other means" (On War, 1832).

-Attempts to restrict freedom of recourse to war:

 Peace Conferences in The Hague 1899, 1907.

 1907 Drago-Porter Convention on the Limitation of the Employment of Force for
the Recovery of Contract Debts (The Hague).

THE LEAGUE OF NATIONS (1919)

GOAL:

 Prevent wars through collective security and to promote peace and security and
disarmament.
 Settle international disputes through negotiation and arbitration
PROVISIONS: Incomplete and ultimately could not prevent WW II.

Yet, their very existence was revolutionary and marked a step away from the sovereign
right to wage war, long regarded as an essential attribute of statehood.

Didn’t ban the use of force, it was only limited by a war moratorium and a catalogue of
illicit wars.

 Arts 8 and 9: Addressed the question of disarmament, rightly considered a

prerequisite for lasting peace.
 Art. 10: Contained a guarantee against aggression, by which members undertook to
respect and preserve the territorial integrity and political independence of each other.
*This could have become the cornerstone of an international system of collective
security. BUT, the provision was strangely dismissed from the sanctions regime of
Art.16 of the Covenant.
 If Art. 10 League Covenant was breached—ie in the case of aggression—the League
Council was merely to ‘advise’ on the future conduct.
 Art. 11: Declared ‘any war or threat of war’ to be ‘a matter of concern to the whole
League

The absence of war was considered an interest of the community as a whole.

The provision also recognized the right of each member to bring to the attention of the
League Council or the League Assembly any circumstance ‘which threatens to disturb
international peace or the good understanding between nations upon which peace
depends’.

With respect to potential reactions the Covenant was vague. In practice, the system was
unable to maintain peace and security effectively.

The League Covenant system lacked a central decision- making authority.

BRIAND-KELLOG AGREEMENT

(27TH AUGUST 1928 - ENTERED INTO FORCE 24TH JULY 1929)

Signed in Paris: 15 signatories + total of 57 (by 1929).

GOAL: Treaty between the United States and other Powers providing for the renunciation
of war as an instrument of national policy.

Art. 1. The High Contracting Parties solemnly declare in the names of their respective
peoples that they condemn recourse to war for the solution of international controversies,
and renounce it, as an instrument of national policy in their relations with one another.
Art 2. The High Contracting Parties agree that the settlement or solution of all disputes
or conflicts of whatever nature or of whatever origin they may be, which may arise among
them, shall never be sought except by pacific means. However, it didn’t prevent World
War II for taking place.

THE PROHIBITION OF THE USE OF (ARMED) FORCE: THE SCOPE OF

ARTICLE 2.4 OF THE UNITED NATIONS CHARTER

 PREAMBLE: To save succeeding generations from the scourge of war, which twice
in our lifetime has brought untold sorrow to mankind.
 ARTICLE 1.1. To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to the peace,
and for the suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.

ART. 2. The Organization and its Members, in pursuit of the Purposes stated in Article
1, shall act in accordance with the following Principles:

1) The Organization is based on the principle of the sovereign equality of all its
Members.
2) All Members, in order to ensure to all of them the rights and benefits resulting
from membership, shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter.
3) All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
4) All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.
 5) All Members shall give the United Nations every assistance in any action it takes
in accordance with the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or enforcement
action (Cooperation principle).

THIS DEFINITION IS CHALLENGED.WHY?

Prohibition of the threat or use of force BUT, no definition.

 No definition of what kind of force. Economic coercion against weaker States is

included? Political pressures?
 The only forbidden use of force is ARMED FORCE.
 Brazil wanted to include economic and political actions used as coercion as well
but it wasn’t successful.
 Those type of violations fall under article 2.7.

What about MNCs responsibilities?

The “resources curse”, la “Maldición de los recursos”.

ANOTHER CHALLENGE: CYBERWARFARE

NEWREALM: CYBERSPACE

OTHER FOUR REALMS? –

The UN Charter hasn’t changed since 1945 BUT the world has changed a lot.

Difficult to regulate cyberspace with traditional concepts.

DEFINITION: Cyber warfare involves the actions by a nation-state or international

organization to attack and attempt to damage another nation's computers or information
networks through, for example, computer viruses or denial- of-service attacks.

States have computerized infrastructure, new vulnerabilities...

Can you use force if your State suffers a cyber-attack?

The main question is whether a cyber-attack is an action below the threshold of the use
of force, or a use of force, or a use of force amounting to an armed attack.
No international effective institution (yet) that deals with responsibility regarding cyber-
attacks.

Cyber force could be qualified as a use of ‘armed’ force in the sense of Article 2 (4).

Only large scale cyber-attacks on critical infrastructures that result in significant physical
damage or human losses comparable to those of an armed attack with conventional
weapons would entitle the victim state to invoke self-defence under Article 51 of the UN
Charter.

We need specific rules!!

THE CONCEPT OF AGGRESSION IN THE UNITED NATIONS CHARTER

SYSTEM
UNGA RES.2625 (XXV)

Declaration on Principles of International Law concerning Friendly Relations and

Cooperation among States in accordance with the Charter of the United Nations (1970).
Reassure the most important principles of UN Charter (2.4).

BUT, WHAT ARE WE MISSING?

A definition of the threat or use of force.

STATEMENT: armed force is forbidden/ banned.

War is aggression -> international crime -> ius cogens norm.

NEW CHALLENGE: What is aggression?

Article 1. Definition of aggression:

Aggression is the use of armed force by a State against the sovereignty, territorial integrity
or political independence of another State, or in any other manner inconsistent with the
Charter of the United Nations, as set out in this Definition. It is a combined definition:
general idea + list of illicit acts that should be consider aggression in article 3.

Any of the following acts, regardless of a declaration of war, shall, subject to and in
accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State,
or any military occupation, however temporary, resulting from such invasion or attack,
or any annexation by the use of force of the territory of another State or part thereof,

(b) Bombardment by the armed forces of a State against the territory of another State or
the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and
air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided for
in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression against
a third State; (ANY EXAMPLE??)

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another State of such gravity as
to amount to the acts listed above, or its substantial involvement therein.

CONCLUSION: Aggression is a crime against international peace and security and it

creates international responsibility for those acts.

*ROME STATUTE (1998 ENTERED INTO FORCE 2002)

Rome Statute of the International Criminal Court is the treaty that established the
International Criminal Court (ICC).

123 States that are party to the treaty.

Established four core international crimes: genocide, crimes against humanity, war
crimes, and the crime of aggression.

Those crimes "shall not be subject to any statute of limitations".

The ICC can only investigate and prosecute the four core international crimes in situations
where states are "unable" or "unwilling" to do so themselves.

The jurisdiction of the court is complementary to jurisdictions of domestic courts.

The court has jurisdiction over crimes only if they are committed in the territory of a state
party or if they are committed by a national of a State party.

EXCEPTION: the ICC may also have jurisdiction over crimes if its jurisdiction is
authorized by the SC.

Kampala Amendments to the Statue of Rome (2010) regarding the crime of aggression
and war crimes (It changed definition + jurisdiction). Only 39 States. Spain 2014.

EXCEPTIONS TO THE PRINCIPLE OF PROHIBITION OF THE USE OF

FORCE
THE RIGHT TO LEGITIMATE INDIVIDUAL AND COLLECTIVE DEFENSE

“Nothing in the present Charter shall impair the inherent right of

individual or collective self-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of selfdefence
shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council
under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and
security.” (Article 51, UN Charter).

Three main ideas:

TEMPORARY: It ends when the Security Council intervenes.

SUBSIDIARITY PRINCIPLE: Article 51 does not affect the supreme authority of the
Security Council to take any measure.
MANDATORY: It is mandatory to report every action to the Security Council.

WHEN CAN ARTICLE 51 BE INVOKED? ONLY when an armed attack is taking place
at that specific time.

Armed attack in progress

 There is NO legitimate preventive defense.

 Preemptive strike is also forbidden in IL.

ICJ:

 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America) 1986.
 Legality of the Threat or Use of Nuclear Weapons (Advisory opinion) 1996.
 Oil Platforms (Islamic Republic of Iran v. United States of America) 2003.
 Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda) 2005.

*Difference between preemptive and preventive (by Council on Foreign Relations)

Not a matter of semantics matter of timing that has implications for whether an act is
justified or not.

Traditionally, preemption constitutes a 'war of necessity' based on credible evidence of

imminent attack.

Preventive wars (expanded by Bush administration) are essentially 'wars of choice' that
derive mostly from a calculus of power, rather than the precedent of international law.

In choosing preventive wars, policymakers project that starting a war, even if unprovoked,
against a rising enemy sooner is preferable than later when the balance of power no longer
rests in their favor.

HUGE DEBATE: How can we close the gap between the restrictive interpretation of
article 51 and preventive/preemptive?
ARTICLE 51: MAIN CONSIDERATIONS

 Proportionality: Main goal is to defend yourself. Only to repel the attack (control
the intensity of the attack).
 Immediacy: Proximity (time) between the illicit armed attack and the use of article
51.
 Necessary: Only way to stop/repel the armed attack.

It is very difficult to prove that an imminent attack is going to take place. How can we
justify an attack under article 51 without these three main considerations?

**No armed reprisals: A reprisal is a limited and deliberate violation of international law
to punish another sovereign state that has already broken them.

Reprisals in the laws of war are extremely limited.

CASES IN WHICH ARTICLE 51 DOES NOT APPLY

 Minor uses of force: They do have international responsibility, BUT they do not
justify the use of article 51.
 Attacks committed by non-state actors
 Even though non-state actors might have help/support from another State.
 Since the Global War on Terrorism > discussions to include non-state
actors.
Some non-state actors have the capability to cause the same amount of
harm.
Article 51 does not specify States.

Based on an interpretation of Res.2249 (2015) (UNSC) regarding terrorism: Unwilling or

unable State: A State that can’t or simply won’t stop the illicit actions that are made by
non-state actors inside its territory.

NO SUPPORT...WHY? PRINCIPLE OF NON INTERVENTION.

ARTICLE 51 - COLLECTIVE DEFENSE

When the response to an illicit attack is coordinated by several States.

The attack has only targeted one State, BUT the rules of article 51 applies to all of them.

Two scenarios:

1. There is an agreement prior to the attack. Examples: Article 5 NATO, TEU 42.7.
2. The State under attack asks for help.

ARTICLE 5 NATO

The Parties agree that an armed attack against one or more of them in Europe or North
America shall be considered an attack against them all and consequently they agree that,
if such an armed attack occurs, each of them, in exercise of the right of individual or
collective self-defence recognised by Article 51 of the Charter of the United Nations, will
assist the Party or Parties so attacked by taking forthwith, individually and in concert with
the other Parties, such action as it deems necessary, including the use of armed force, to
restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be
reported to the Security Council. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace and
security.

ARTICLE 42.7 TEU

If a Member State is the victim of armed aggression on its territory, the other Member
States shall have towards it an obligation of aid and assistance by all the means in their
power, in accordance with Article 51 of the United Nations Charter. This shall not
prejudice the specific character of the security and defence policy of certain Member
States. Commitments and cooperation in this area shall be consistent with commitments
under the North Atlantic Treaty Organisation, which, for those States which are members
of it, remains the foundation of their collective defence and the forum for its
implementation.
EXCEPTIONS TO THE PRINCIPLE OF PROHIBITION OF THE
USE OF FORCE
THE COLLECTIVE SECURITY SYSTEM: THE USE OF ARMED FORCE
WITHIN THE FRAMEWORK OF CHAPTER VII OF THE UN CHARTER

Articles in the UN Charter regarding the Security Council

Chapter V: Composition, FUNCTIONS and POWERS, voting procedures.

Chapter VI: Pacific settlement of disputes.

Chapter VII: Actions with respect to threats to the peace, breaches of the peace, and acts
of aggression.

CHAPTER VIII: Regional arrangements.

Chapter VII: Actions with respect to threats to the peace, breaches of the peace, and acts
of aggression.

COLLECTIVE SECURITY SYSTEM

UN Charter grants the Security Council the mission of maintaining international peace
and security.

IMPORTANT UN CHARTER ARTICLES REGARDING THIS MISSION: 2.7, 24, 25

ARTICLE 2.7

Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present Charter; but
this principle shall not prejudice the application of enforcement measures under
Chapter Vll.

ARTICLE 24

1. In order to ensure prompt and effective action by the United Nations, its members
confer on the Security Council primary responsibility for the maintenance of
 international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
2. .In discharging these duties the Security Council shall act in accordance with the
Purposes and Principles of the United Nations. The specific powers granted to the
Security Council for the discharge of these duties are laid down in Chapters VI,
VII, VIII, and XII.
3. The Security Council shall submit annual and, when necessary, special reports to
the General Assembly for its consideration.

ARTICLE 25

The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter

Chapter VII: Actions with respect to threats to the peace, breaches of the peace, and acts
of aggression

 Art. 39 determination of the existence of any threat to the peace, breach of the
peace, or act of aggression.
 Art. 40 provisional measures.
 Art. 41 measures not involving the use of armed force.
 Art.42 measures involving the use of armed force.
 Articles 43-48 mechanisms to achieve its purpose.
 Art. 50 monetary assistance

Acting under Chapter. VII decisions are binding on all States

 Article 103: In the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present Charter
shall prevail.

MAIN PROBLEM: THE SECURITY COUNCIL

The UNSC is no longer an effective tool.

It does not represent our current world: Russia, China, UK, USA, France
UNSC REFORM?

SPAIN : Uniting for Consensus

French proposal

PEACEKEEPING OPERATIONS: MULTIDIMENSIONAL AND MULTILEVEL

STABILIZATION MISSIONS

Operate outside the system of collective defense (formally speaking)

NO Chapter VII, known as Chapter VI and a half.

However, they are approved by the Security Council (through a resolution).

WHY? Because of the incapacity to perform by the UNSC.

RES. 377 (V) (1950) Uniting for peace

As a response to the strategy of the USSR to block any determination by the Security
Council on measures to be taken in order to protect the Republic of Korea against the
aggression launched against it by military forces from North Korea.

RES. 377 (V) (1950) Uniting for peace

Section A which states that: where the Security Council, because of lack of unanimity of
the permanent members, fails to exercise its primary responsibility for the maintenance
of international peace and security, the General Assembly shall seize itself of the matter.
Procedural and substantive steps are suggested.

Although the General Assembly did not attempt to arrogate to itself Chapter VII powers,
originally resolution 377 A (V) was "against" the UN Charter.

Articles 11.2 and 12.1 >primacy of the Security Council with regard to all matters relating
to international peace and security.

This configuration, however, was hard to uphold > erosion of both articles.

Politically, it is definitely quite unwise to keep the General Assembly on the sidelines
when a major conflict erupts.

Advisory Opinion on the Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory , the ICJ has formally confirmed that the prohibition of
simultaneous action has been superseded by practice ( I.C.J. Reports 2004 , p. 136, at
paras. 27-28).

UNSC authority + Secretary General appointment (Special Representative).

 1956 FENU >Suez Crisis.

 1960 ONUC (Congo) > 20.000 deployment.

Different nature.

1. To observe: Military groups + civil staff > main goal is to collect Intelligence.
2. Armed forces with a military command in an armed conflict.

Currently > multidimensional and multilevel.

Try to overcome the "State to mission relation" and take into account non state actors.
Local, regional, international.

COMPOSITION: Volunteer armed forces by Member States.

PRINCIPLES: Impartiality + neutrality. NOT a fighting force, BUT a "police".

FORBIDDEN the use of force (and weapons) unless self-defense.

Article 17.2 regarding economic sphere.

II. THE NEWARMED CONFLICTS

PEACEKEEPING OPERATIONS

Africa, Asia and Latin America provide more than 90% of military and police personnel
to UN peace operations + 15% of the budget.

WESTERN STATES: Since the late 1990s, States are unwilling to send their own
personnel where risks are high and national interests low. West contribution could be
described as “hired help” from the Global South.

Why States from the Global South contribute to UN peace operations? 3 reasons: regional
cooperation; recognition and prestige and financial benefits.

Regional interests help to explain why African countries have provided, since 2013, the
majority of troops on the continent with the most armed conflict and most peacekeepers.

Regionalization of peace operations:

 Advantages: Proximity + troop contributors share a common background.

 Disadvantages: Each State has its own agenda (priorities).
Western powers criticize inadequate training and equipment of many contributing
countries, BUT: unwilling to deploy their own troops to dangerous assignments under a
UN flag.

China is currently the only P5 that is a significant troop contributor. WHY? Its influence
overseas is growing + peacekeeping as a tool.

Public image: India and Pakistan.

Countries with weak economies may provide UN troops for the benefit of compensation
(economic benefit) from the UN (for example, Bangladesh).

NOBODY IS TALKING ABOUT...

Sexual exploitation + abuse no accountability.

WEST REACTION: Use allegations of sex abuse and exploitation against troop and
police contributors from the Global South, among other things, to dismiss their demands
for change. Primacy of politics is evident in UN peace operations.

WAR

“War is a chameleon” (On War, Clausewitz, 1832).

It evolves on what we see on the outside but not on its nature.

“War is thus more than a true chameleon, because it changes its nature to some extent in
each concrete case. It is also, however, when it is regarded as a whole and in relation to
the tendencies that dominate within it, a fascinating trinity composed of primordial
violence, hatred, and enmity, which are to be regarded as a blind natural force; the play
of chance and probability, within which the creative spirit is free to roam; and its element
of subordination, as an instrument of policy, which makes it subject to pure reason”

Even though each war is different, there are 3 main elements:

 Hatred and enmity.

 Probability (related to the army).
  Subordination (related with politics, the reason of wars).

The nature of war is eternal: war, is the same, it is the character and conduct of war - how
it is waged, by whom and for what ends -that has changed overtime.

The notion of war has lost its limits. Current wars armed conflicts respond to different
parameters:

 Subjective: Wars vary according to the parties involved.

 Temporal: When does a war start and when does it ends?
 Spatial: Where do the wars take place?
 Social: Is the society involved? Are civilians the main target?
 Economic: Throughout history, belligerents didn’t have profit until they won the
war. Nowadays, many belligerents get economic profit while they are on war.

EVOLUTION OF WAR

Since 1949, war does no longer exist: officially forbidden by the UN Charter.

Evolution? NOT in military terms. It is a political, social and moral revolution: a crisis of
legitimacy of the State.

Why?

 The State has lost the monopoly of the use of force: Private military companies.
 The State harms its population: Examples?
 The State is no longer a legitimate provider of security.

Why do people fight for?

 Power: any kind of power (geopolitics really present).

 Identity: ethnic, religious, national, tribal etc. (60% between 2001-2010).
 Economic causes: Access to resources (energy, minerals, food, aquifers, etc.).

Ideologies and territoriality have lost space as causes of armed conflict.

How is war conducted?

 Wars are getting worse + suffering.

  New technologies and weapons.
 New spaces/ realms (cyberwarfare...).
 Asymmetry.
 Principles of proportionality, distinction and precautions

GENERATIONS OF WAR MODEL

We classify wars, but we should not... WHY?

It involves highlighting some features and forgetting others for the benefit of educational
interest (Federico Aznar Fernández-Montesinos).

 First generation warfare.

 Second generation warfare.
 Third generation warfare.
 Fourth generation warfare.
 Fifth generation warfare.

Today, war is changing faster and on a larger scale than at any time in the last 350 years.
FIRST GENERATION WARFARE

Culmination: Napoleonic Wars (1803-1815).

1.Battlefield of order:

 Line and column tactics.

 Culture of order in state militaries.

Most of the things that define the difference between “military” and “civilian” (order on
the militaries: saluting, uniforms, careful gradations of rank, etc.) are products of the First
Generation and exist to reinforce a military culture of order.

SECOND GENERATION WARFARE

1. Order of the battlefield began to break down:

 New tactic based on fire: firepower warfare.
 Technological developments.
 Mass armies (conscription) and nationalism.

It relied on centrally controlled indirect fire (appearance of artillery), carefully

synchronized with infantry, cavalry and aviation, to destroy the enemy by killing his
soldiers and blowing up his equipment.

This is the main tactic used by many armies today, for example the U.S.

“Artillery conquers and infantry occupies” J. F. C. Fuller (1878-1966).

2. Military culture of order was preserved:

  Try to compensate the increasing disorder in the battlefield.
 Militaries focus inward on orders, rules, processes, and procedures.

1GW and 2GM value obedience over initiative and relies on imposed discipline.

THIRD GENERATION WARFARE

1) Disorderly battlefield: Not trying to impose order, BUT by adapting to disorder and
taking advantage of it.

Armies surrender to reality and try to adapt + take advantage by not imposing some order
(For example, World War II)

 Maneuver warfare.
 Mechanization of armies (such as tanks).
 Strategic bombing

“Total war”: affecting the entire society (mobilization of the entire society): propaganda,
identity and mobilization to reach the civilians. All the resources at the disposal of the
State are used by military purposes to win the war.

 Developed by the German Army during World War I.

 The attacks of Hiroshima and Nagasaki are two examples of total war with the
appearance of weapons of mass destruction.
2) It relied less on firepower than on speed and tempo:

Presenting the enemy with unexpected and dangerous situations, pulling him apart
mentally as well as physically.

Embrace the idea of destroying the moral of the enemy.

 “Movement" is the essence of maneuver.

 Objective: win quickly (blitzkrieg) - guerra relámpago, lighting war. Used by
Germans at the beginning of World War II.

Operations carried out with an “overwhelming force” (Powell doctrine).

Once you know you are going to do something, do it quickly + with everything to force
the enemy to improvise.
The Powell Doctrine Questions:

1. Is a vital national security interest threatened?

2. Do we have a clear attainable objective?

3. Have the risks and costs been fully and frankly analyzed?

4. Have other nonviolent policy means been fully exhausted?

5. Is there a plausible exit strategy to avoid endless entanglement?

6. Have the consequences of our actions been fully considered?

7. Is the action supported by the American people?

8. Do we have genuine broad international support?

3) Break with the culture of order: initiative valued over obedience.

 Tolerating mistakes, EXCEPT those coming from cowardness.
 Relaying on self-discipline rather than imposed discipline.

Why?

 Because only self-discipline is compatible with initiative.

FOUR GENERATION WARFARE

1. Battlefield and society disordered.

Characterized by asymmetry and by being hybrid conflicts.

No real definition, BUT understood as:

- Asymmetric: imbalance on the combat power. Belligerents have different militar

capabilities. It is also an asymmetric conflict when it involves two actors with
different legal status (state and nonsate actor).
- Hybrid: all means and methods. Not only military force, yet use of force of some
kind

Most of the world’s state militaries remain Second Generation.

WHY? Cultural reasons: Unable to leave the culture of order that 3GW and 4GW require.
This is why, around the world, state-armed forces are not doing well against non-state
enemies.

“When I was a young officer, I was taught that if you have air
superiority, land superiority and sea superiority, you win. Well, in
Vietnam we had air superiority, land superiority and sea superiority,
but we lost. So, I realized there is something more to it” (U. S. Air
Force Colonel John Boyd)

 Spatial perspective: Transformation or disappearance of the battlefield by

expanding the traditional theater of operations: no identifiable fronts, everything
is diluted, becomes more diverse and complex.
 Battlefield: Enemy society as a whole (urban warfare, cyberspace etc.).
 Superior opponent vs. the inferior one who will try to exploit the advantage of
choosing where and when.

+ > 80% of current conflicts are internal (non- international armed conflicts), but
multilevel wars (not just about the internal situation, its going to have a regional reflection
and an international impact). Battlefield “full of cameras” except for “forgotten conflicts”
(Africa). But selective and biased information.

2. Temporal factor:

 Beginning? End? : the lines between peace and war blur.

 War as the conclusive event of an international conflict becomes obsolete.
 The features of 4GW prevent these from been short, precise and manageable.
 The weaker actor interested in prolonging the war sine die:
- Avoids decisive clashes.
- For democratic States, time is not on their side.
- Violence becomes endemic.
3. “Unlimited war”, total war:

When the objectives are unlimited (example: war on terror), the margins of temporal and
spatial intervention disappear.

WHY? The ultimate objective is the eradication of ideology /existing regime. Invasion is
not enough, reconstruction is essential. Pursued through investments (not only material,
but political, legal, economic, social, etc.) and operations of stabilization.

However, interventions can also pursue chronic instability and the establishment of failed
States that perpetuate control and alliances in the area that keeps the conflict latent.

4. New wars (coined by Mary Kaldor):

After World War II, classic inter-state wars are not common. Last one: Gulf War (90-91):
Coalition of 34 States + UNSC approval against Iraq because of Kuwait's invasion

CHARACTERISTICS:

 Cultural Intelligence.
 Victory is difficult if execution is not adapted to the cultural environment in which
the operations are carried out.
 Psychological and media factors.
 Seek the destruction of the adversary's morale rather than its physical destruction.
 Economic financing: War is a relevant and influential source of income both for
States (the arms industry and the reconstruction industry of real estate and
infrastructure of the destroyed States) and for nonstate actors.

At the heart of this phenomenon of 4GW:

 Political, social, and moral revolution.

 Crisis of legitimacy of the state: citizens are transferring their primary allegiance
away from the State to other entities: tribes, ethnic groups, religions, gangs,
ideologies, and “causes.”

So no purely military solution to 4G threats. Military force is incapable, by itself, of

restoring legitimacy to a State. “You can kill a man but you can’t kill an idea” "You can
cut all the flowers but you cannot keep spring from coming" Pablo Neruda.
ASYMETRIC CONFLICTS

Academic positions:

 From a classic concept structure, only conflicts featuring all three attributes are
“asymmetric”.
 From a family resemblance concept structure, conflicts are asymmetric if at least
one of the three characteristics are present.
 Some scholars see certain traits as more important than others.

ASYMETRIC CONFLICTS: LEGAL STATUS ELEMENT

 STATES VS NON STATE ACTORS

ASYMETRIC CONFLICTS: STRATEGY ELEMENT

1. Using different tactical doctrines from those of the adversary:

- Direct strategies targeting capabilities - (Clausewitz). They are conventional strategies

(militar).

- Indirect strategies targeting willingness (Sun Tzu) – guerillas. Fighting civilian

population, engaging in more than just targeting the militaries. 1. Using different tactical
doctrines from those of the adversary:

“The guerrilla wins if he does not lose. The conventional army loses if
it does not win” ( Henry Kissinger).

When actors employ similar strategic approaches, relative power explains the outcome.
When actors employ opposite strategic approaches, weak actors are more likely to win.

2. Disrespect of the laws of war by one belligerent:

- Mao Zedong: guerrillas should move amongst the people blurring the distinction
between combatants and non-combatants.
- Colonels Qiao Liang and Wang Xiangsui: war is about “using all means, including
armed force or non-armed force, military and non-military, and lethal and non-lethal
means to compel the enemy to accept one’s interests” (Unrestricted Warfare, 1999).

ASYMETRIC CONFLICTS: CAPABILITY ELEMENT

Capabilities: Difference in technology, quality, quantity and type used by the

belligerents. Imbalance in the military capability of contending parties is a characteristic
of contemporary armed conflicts, not because it is new, but because it has become a
structural feature.

Technological gap between the belligerents +Increasing participation of non-state entities

= Asymmetry in constant increase.

Weaker party: seeks a comparative advantage with a strategy based in practices

prohibited in IHL. Example: direct attacks against civilians, taking of hostages and the
use of human shields, and the use of these practices as a strategy.

Superior party: resorts to other prohibited practices. Example: indiscriminate attacks,

illegal interrogation practices, hard-to-investigate covert operations etc.

HYBRID CONFLICTS

Is not a concept that can be separated from asymmetric conflict.

Controversial term but widely used.

Proponents argue that hybrid conflict is the product of the adaptation of irregular (contrary
to the uses and customs of the war) and asymmetric warfare to today's world. Irregular
warfare + Asymmetric warfare = Hybrid Conflict.

HYBRID CONFLICTS: classification by professor Carlos Galán

 Hybrid threat: More complex and multidimensional threat

*Frank G. Hoffman: “A threat that, capable of being used by both states and non-
state actors, takes advantage of the entire range of modes and styles of struggle
available,”
 Hybrid conflict: Not open use of armed force. Military intimidation (not
conventional attack). Exploitation of economic, political, technological and
diplomatic advantages.
 Hybrid war: Open use of armed force and the use of all other available means.
Strategy that combines the use of military means with the intensive use of the
media (propaganda). The boundaries between war and peace tend to blur.
Designed to avoid the military reaction (reprisals) of the adversary. Low-intensity
conflicts must be excluded of hybrid conflicts
GREY ZONE

Controversial concept that underlines the complexity of new wars that use hybrid
strategies, operations that may not clearly cross the threshold of war.

Ambiguity of international law, ambiguity of actions and attribution, or because the

impact of the activities does not justify a response.

It was not until the publication of the article "The war of the future: the arrival of the
hybrid conflict" , written by the head of the Pentagon, James N. Mattis, together with
Lieutenant Colonel Frank G. Hoffman, that it was given theoretical content, taking the
example of the 2006 war between Israel and Hezbollah.

“Hybrid threats are many different threats, and we use the phrase
hybrid to cover actually many different things: normally a kind of
mixture of military and non-military means of aggression; a
combination of covert and overt operations and measures, everything
from propaganda, from disinformation to actually the use of regular
forces, from tweets to tanks; sometimes soldiers in uniform,
sometimes soldiers without uniform; and sometimes something that
happens in the cyberspace and sometimes things that happens at our
borders” (2017) NATO Secretary General Jens Stoltenberg

NEW GENERATIONS OFWARFARE

New categories of war that have in common the symbiosis between internal security and
external defense within the framework of the new concept of human security.

5GW: “war without contact and silent” ; based on the massive use of the cybernetic media
and on the “domain of the mind” (Roy Alderman).

It relates to human security. It is about the use of information for personal benefit through
technological means in the midst of a conflict or a non-conflict. The goal is to influence
public opinion.
-Information operations emerge as coordinated actions to influence the adversary's
decision-making, generating confusion and interfering with their command and control
capabilities.

Black Mirror War: Where technology and networks come together to create virtual
realities more authentic than real life...

It paradoxically entails:

- The end of transparency from power.

- The manipulation of the now totally transparent citizen.
- There are already academic proposals for 6GW and 7GW.
 -

LESSON II. INTERNATIONAL HUMANITARIAN LAW, ITS

NORMATIVE NATURE AND ITS RELATIONS WITH OTHER
SECTORS OF INTERNATIONAL LAW
IHL: DEFINITION

International rules, established by treaty or custom, which are specifically intended to

solve humanitarian problems directly arising from international or non-international
armed conflicts, and which, for humanitarian reasons, limit the rights of the parties to a
conflict to use the methods and means of warfare of their choice and protect persons and
property that are, or may be, affected by the conflict” (ICRC, Commentary on AP 1977
to the GC of 1949).

It can also be described as the basic norms of humanity.

Terminology: IHL (International Humanitarian Law), LOAC (Law of Armed Conflict),

Law of war and ius in bello are synonyms.

IHL: OBJETIVES

1. Diminishing the evils of war, IHL does not deal with the disappearance of war.

2. Establishing a balance between the interest of the parties in conflict and the reduction
of human suffering.

3. Not determining whether war is just or not (jus ad bellum).

4. Principle of military necessity: IHL is not going to delete the right that States parties
have to conduct war.

5. Principle of humanity: to preserve human dignity.

6. Protecting those not or no longer taking part in hostilities.

7. Regulating means and methods of warfare (protecting those taking part in hostilities).
IHL: IUS AD BELLUM AND IUS IN BELLO

IUS AD BELLUM: Peaceful times. The international rules pertaining to which extent the
use of military force against another State is allowed. Its pillars can be found In article
2.4 and 51 of UN Charter. The right to engage in war.

IUS IN BELLO: Wartime (most important for this course). The international rules
pertaining to how armed conflict must be conducted:

 Protection of civilians and individuals hors de combat.

 Protection of combatants.
 Means and methods of warfare.
 Relationship to neutral States.

RELATION BETWEEN IHL AND IHRL

IHRL: International Human Rights Law.

Not the same. Different fields, although they share some characteristics such as the
protection of human dignity and human suffering (protection of victims).

IHRL is a “lex generalis” (general norm in respect to another more specific) that
establishes obligations on States and it works in times of peace and war.

IHL is a “lex specialis” (specific norm respecting another much more general) that creates
obligations on all subjects and it applies during the conduct of an armed conflict.

They complement each other.

Regarding the relationship between IHL and IHRL, three situations can arise:

a) Some rights may be exclusively contemplated in IHL.

b) Some rights may be exclusively contemplated in IHRL.

c) Some rights may be contemplated in both branches of law

APPLICABILITY OF IHL

There are four aspects of applicability of legal rules:

Ratione materiae: Material scope of applicability: “armed conflict”. Applicability

depends on the existence of an armed conflict:

 International armed conflict (IAC): situation (armed conflict) in which two or

more States are confronted.
 Non-international armed conflict (NIAC): Armed conflict where governmental
forces and non-governmental armed groups (or between each group) are
confronted.

Ratione personae: Personal scope of the applicability: State organs, belligerents,

individuals, peace-keeping personnel of IIOO etc.

 Active aspect: Who is bound by IHL? The main criteria is the principle of
effectiveness: effective participation in armed conflict triggers the application
IHL. The actors which are bound are: a) States: in particular the armed forces of
the State (IHL specifically designed to apply to these forces). b) IIOO ( for
example UN). c) Non-state actors (for example guerrillas). d) Individuals: if they
perform hostile acts in the context of the armed conflict.
  Passive aspect: Who is protected by IHL? Those who do not participate in the
hostilities: a) Civilians. b) Combatants hors de combat: wounded, sick,
shipwrecked or surrendered. (For example, a soldier that is not participating
actively in a hostility, de facto, he is not taking part, de iure, is a combatant). c)
Prisoners of War (POW). d) Combatants involved in the armed conflict: not
formally seen as protected people, but they are, due to prohibitions on means and
methods of warfare.

Ratione loci: Spatial scope of applicability: territory of the belligerent States and spaces
where effective fighting takes place. IHL will apply in three types of areas:

a) The territory of the belligerent states.

b) All spaces where there are actual hostilities or relationships between belligerents
outside the territory of the belligerents (for example, on the high seas).

c) Occupied territories without the existence of a state of war or actual hostilities.

Ratione temporis: temporal scope of applicability: when starts and stops to apply. It can
be seen a distinction between objective and subjective scopes of temporal applicability:
a) Objective: IHL applies during any period of:

• Armed conflict.

• Situations of declared war.

• Occupation of foreign territory without resistance.

b) Subjective: Conventional IHL norms only apply: When there is a treaty or additional
protocols like Geneva Convention. Once these instruments are in force for a State, it will
be applicable, but also we will have to see if that treaty is ratify by x country.

SOURCES OF IHL

1. Customary law.

2. Ius cogens norms: Fundamental norms and principles that apply to the entire
international community.
3. Conventional law:

 Hague Law: rules and conduct of hostilities (means and methods, for example:
prohibition of the use of chemical weapons): Hague Conventions of 1899 and
1907.
 Geneva Law: protection of victims and persons not participating in hostilities.
Geneva Conventions of 1949 and two Additional Protocols 1977 (1st IAC, 2nd
NIAC).
LESSON III.(PART I). ARMED CONFLICTS AND GUIDING PRINCIPLES
OFINTERNATIONAL HUMANITARIAN LAW

ARMED CONFLICT: DEFINITION

Considering the material applicability of IHL, its applicability depends on the existence
of an armed conflict.

So firstly, we have to ask: Is there an armed conflict? Is it an international or non-

international armed conflict?

According to the ICTY (ICTY, Prosecutor Tadic Decision on the Defense Motion for
Interlocutory Appeal on Jurisdiction, 1995 2nd oct. para. 70): “An armed conflict exists
whenever there is a resort to armed force between States or protracted (intensity) armed
violence between governmental authorities and organized armed groups or between such
groups within a State”.

The Geneva conventions do not provide a definition for armed conflict, but it does for
IAC and NIAC.

To understand better the concept:

 “...exists whenever there is a resort to armed force between States...” (IAC).

 “...protracted armed violence between governmental authorities and organized
armed groups… (NIAC).
 Between such groups within a State” (NIAC).

PROTRACTED VIOLENCE:

The tribunal understood protracted violence as an element aiming and establishing

intensity requirements.

MEANING: A resource to armed force between States or violence of a certain intensity

between governmental authorities and organised groups or between armed groups
themselves.
FOR THE ICTY: The only requirement for having an armed conflict between a State and
an AG or AG themselves is that there is a violence that endures for a certain period of
time.

The idea is that longevity is one of the different elements to identify that there is a certain
degree of intensity.

This is important because tribunals may differ in interpretation. International Criminal

Court (Rome statute after ICTY judgement)

Article 8f about war crimes: “Paragraph 2 (e) applies to armed conflicts not of an
international character and thus does not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar
nature. It applies to armed conflicts that take place in the territory of a State when there
is protracted armed conflict between governmental authorities and organized armed
groups or between such groups.” Terminology is the same, but ICC interprets it in a more
restrictive way.

ARMED CONFLICTS: CHARACTERISTICS

At least 100 hundred mortal victims each year and/ or huge impact on the territory.
Purpose: to achieve objectives (not random crime):

 To control resources or territory.

 Self-determination principle + self-governance.
 Rejection of the current/ruling political/economic/social system.

HISTORICAL REVIEW: REGULATION

Until the adoption of the Geneva Conventions in 1949, IHL was only designed to regulate
IAC. Everything was designed to regulate IACs and not NIACs.

WHY? Because the only type of armed conflict that existed before 1949 was war between
States. However, there had always been another type of armed conflict: civil wars.

The reason why there were no IHL norms prior to 1949 that applied to such conflicts was
the principle of non-intervention, which is now more flexible that the one established by
the UN Charter.
Finally, NIAC (civil wars) were regulated by IHL because there were no less pressing
humanitarian needs and because harmful actions in NIAC were often greater than in IAC.

ARMED CONFLICTS: CATEGORIES

Two main categories, two different levels of protection:

 IAC: Only States involved: broad protection meaning more rules that States or the
parties involved in the conflict have to respect.
 NIAC: Involvement of non-state actors, so minimum protection.

Current challenge: NIACs have increased, there is a higher involvement of non-state

actors and increased complexity (Be careful with hybrid cases).
INTERNATIONAL ARMED CONFLICTS (IAC)

COMMON ART. 2 GC: APPLICATION OF THE GENEVA CONVENTIONS

“In addition to the provisions (these provision refer to the UN charter, the human rights
law,…) which shall be implemented in peacetime the present Convention (it refers to 1,
2, 3, 4) shall apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of war is not
recognized by one of them. The Convention shall also apply to all cases of partial or total
occupation of the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance....

ANALYSIS OF COMMON ART. 2 GC:

1. Recognition of war.

Effective armed conflict. Even if a state of war is not recognized by one or both parties.
If de facto is happening, IHL applies. The fact that hostilities are taking place is sufficient
to trigger the application of the rules of IHL.

No need of specific intensity: threshold is low (even minor hostilities can trigger
application, for example: taking a soldier of another State hostage).

ANALYSIS OF COMMON ART. 2 GC:

2. Declared war.

If a party declares war, although it may be illegal, IHL applies. Nowadays, declarations
of war are extremely rare. Two situations:
 a) The declaration of war is followed by hostilities: IHL applies because there are
hostilities de facto: effectiveness is the principle that prevails, effective hostilities
are there.
b) The declaration of war is not followed by effective hostilities.

3. Occupation of a territory without armed resistance.

A territory is considered to be occupied when it is de facto under the authority of a foreign

army without consent (effective control). Occupation extends only to the territories where
that authority is established with the means to be exercised. Two situations:

a) If a territory is occupied after fighting takes place. IHL applies because there is
hostility.

b) If there is no actual fighting (and no declaration of war). IHL applies because of the
non- occupation principle.

ARTICLE 1(4) OF AP I

Wars of national liberation

“…armed conflicts in which peoples are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of self-determination,
as enshrined in the Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations”.

If there is a conflict related with self-determination, it is considered an

INTERNATIONAL ARMED CONFLICT.

Analysis of ART 1.4 AP I

Formulated due to the insistence of new States after the decolonization process.
Objective: When colonized people fought against a colonizing power in order to obtain
independence, the resulting armed conflict should not be regarded as a NIAC, but as an
IAC.

WHY? IHL applicable to AIC grants more protection. Example: POW status.
Peaceful time: If someone does something wrong, that person will be prosecuted and
judged by the criminal situation of that nation. During a national liberation war: One
individual from an organized group claiming the self-determination right kills one person
of the State's armed forces. The killer has to be granted the POW status. It entails among
other things that he cannot be judged. WHY? To have a balance in legal terms.

NON INTERNATIONAL ARMED CONFLICTS

ARTICLE 1 AP. II

“This Protocol, which develops and supplements [CA3] without modifying its existing
conditions of application, shall apply to all armed conflicts which are not covered [Art. 1
API] and which take place in the territory of a High Contracting Party between its armed
forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them
to carry out sustained and concerted military operations and to implement this Protocol.
Sovereignity of state: This Protocol shall not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence and other acts of a
similar nature, as not being armed conflicts”
LESSON III.(PART II). ARMED CONFLICTS AND GUIDING
PRINCIPLES OFINTERNATIONAL HUMANITARIAN LAW.

HOWDO CA 3 AND AP II REGULATE NIAC?

IHL treaty law establishes a distinction between NIACs within the meaning of CA 3 and
NIACs falling within the definition provided in Article 1 of AP II.

Common Article 3 (mini-convention) applies to “armed conflicts not of an international

character occurring in the territory of one of the High Contracting Parties.”

These include armed conflicts in which one or more organized non-State armed groups
are involved. NIACs may occur between State armed forces and organized non-State
armed groups or only between such groups.

Additional Protocol II applies to armed conflicts “which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over
a part of its territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol.”

The definition of a NIAC in AP II is narrower than the notion of NIAC under CA 3 in

two aspects:
  It introduces a requirement of territorial control, by providing that organized non-
State armed groups must exercise such territorial control “as to enable them to
carry out sustained and concerted military operations and to implement this
Protocol.”
 AP II expressly applies only to armed conflicts between State armed forces and
dissident armed forces or other organized armed groups. Unlike CA 3, AP II does
not apply to armed conflicts between organized non-State armed groups.

In this context, it must be kept in mind that AP II “develops and supplements” CA 3

“without modifying its existing conditions of application.” , meaning that this restrictive
definition is relevant only for the application of AP II; it does not extend to the law of
NIAC in general.

NIACS? HYBRID CASES?

There are de facto situations that make difficult the classification of conflicts because
even domestic ones have an international character.

Nowadays, any conflict, even NIACs international element.

How? UN intervention, third States, conflicts taking place beyond States' borders etc.

ICRC Report (2011) “International humanitarian law and the challenges of contemporary
armed conflicts” mentions:

1. Controversial assumptions based on the existence of the "international

element" in NIACs are still NIACs.
2. NIACs predominate nowadays. This has been debated/criticized in the
doctrine due to the international elements involved.

FINAL STATEMENT: There is no need of other classification as every situation of

armed violence between organized parties can be classified as an IAC or NIAC.
CASES CONSIDERED BY THE ICRC AS NIACs

1. CLASSIC

Two options:

 Government armed forces VS one (or more) armed groups

organized in the territory of a single State.
 Two (or more) organized armed groups are in the territory of a
single State, but the State is not intervening.

2. CONCURRENT

A NIAC between two or more organized armed groups coexists with an

IAC within the borders of a single State. SO: State A+ AG non-state
armed group. State A+ AG whose conduct is attributed to another State

3. “INTERNATIONALIZED” CONFLICT?

NIAC unleashed in the territory of a single State between government armed forces and
one (or more) organized armed groups, has "spread" to the territory of neighbouring
State(s).

The fact that the confrontation has crossed borders does not shape
the nature of the conflict. Same principles prevail, who is fighting?

A State vs an armed group so ->NIAC.

4. “MULTINATIONAL”

Multinational armed forces fight together with the armed forces of a “host”
State within its territory VS one (or more) organized armed groups
*Multinational is not a legal term.
 5. “MULTINATIONAL” : UN

UN forces (or forces under UN command) are sent to support a “host” State
involved in hostilities against one (or more) armed groups within its
territory. Usually failed States.

6. CROSS-BORDER (“TRANSNATIONAL”)

Armed forces of a State have engaged in hostilities with a non-state party operating from
the territory of a neighbouring “host” State, but without its control or support.

If we cannot prove that this AG is acting on behalf of the State

(state B), then it is a NIAC (AG vs State A) but if the AG is
fighting on behalf of State B then the reality changes, it is an AIC
(the “host” State is in control of the armed group

PROBLEM: Attribute the acts of an AG to a specific State is not easy.

When it happens and there are evidences -> international responsibility as the State has
committed an international wrongful act.

It entails two elements: violation of IL (objective) and that

violation is linked to that State (subjective). It is very difficult to
prove.

How do we know if a State is “in control”?

Effective control test (ICJ) means the armed group basically need to be operative as an
organ of that State.

Global control test (ICTY): More flexible approach. It is enough to prove that there is an
overall control by that State. No explicit order of the State.
THE SPECIAL CASE OF INTERNATIONAL TERRORISM

It is a phenomenon: there is not a legal definition generally accepted, just definitions of

different acts that constitute terrorism.

SO, can we engage into an armed conflict against a phenomenon? No. In legal terms, it
has to be against parties

EXAMPLES:

 US against Al-Qaeda -> it is not a conflict.

 Territory (Iraq): US armed group vs Al Qaeda -> NIAC.
 Syria: NIAC, not a civil war.
 Syria armed forces vs armed group -> NIAC (what applies? CA 3 and AP II if
Syria signed it).
 Coalition of States vs. State -> AIC.

The ICRC does not share the view that there is or has been a conflict with global
dimensions.

Each situation of violence in the fight against terrorism needs to be analyzed separately.
Some situations concerning terrorism may not adjust to the context of armed conflicts but
in a context of peace. EXAMPLE: A terrorist attack in Paris.

QUESTIONING THE LEGITIMACY OF THE GOVERNMENT

Problem of determining which is the legitimate government of a State that has previously
been attacked by a third party.

The defeat of a sitting government does not in itself deprive the armed conflict of its initial
international character, nor does the establishment of a puppet government by the
victorious one.

The only way to change the nature of the conflict: new effective government consents to
the presence of foreign forces in its territory.
APPLICABLE LAWTO NIAC

Norms regulating IACs are much wider than the ones regulating NIACs.

Why? Because of the principle of non-intervention -> lack of development is due to

sovereignty and internal security.

Growing development of NIAC rules: tendency to merge IAC and NIAC.

Merge both norms. Why? International community attempts to ensure maximum

protection for those affected by war.

NIAC's law has low standards and gaps: discriminatory from the humanitarian point of
view and the merged approach avoids the complication of deciding whether a particular
armed conflict is an IAC or a NIAC.

Growing development of NIAC rules leads to a tendency to merge so there is presumption

that same rules apply to IAC and NIAC. A new convention should be adopted to simplify
the application of IHL in NIAC. With few exceptions, one should always refer to the rules
of IAC with NIAC.

Exceptions: POW status. It does not exist in NIACs. It is a person that kills someone
under the jurisdiction of the State. This regulation does not apply to NIAC unless parties
have agreed to.
LESSON III.(PART III). ARMED CONFLICTS AND GUIDING
PRINCIPLES OFINTERNATIONAL HUMANITARIAN LAW

PRINCIPLES OF IHL: OBJECTIVES

1. Diminishing the evils of war.

2. Establishing a balance between the interest of the parties in conflict and the
reduction of human suffering.
 Principle of military necessity.
 Principle of humanity (preserve human dignity).

These two principles seem to be somehow in opposition:

If you only take into account the principle of military necessity -> everything is allowed
(total war). BUT, Principle of humanity (follow your interests according to the military
strategy, but bearing in mind that not everything is allowed).

PRINCIPLE OF MILITARY NECESSITY

Win the armed conflict, whatever it takes to achieve goals. Every action that will help us
is allowed (except those forbidden by law).

"Anything is going to be allowed unless prohibited by law".

However, this principle is not fully applied because of IHL. IMPORTANT: If X action is
not forbidden, it does not automatically mean that it is allowed. This principle coexists
with the principle of humanity

PRINCIPLE OF HUMANITY

Respect and recognition -> basic human dignity of every human being. We are human
beings, we need to preserve life and every single one of us is equally important. Due to
this principle, other 3 core principles emerge as a result of the balance between the
principle of military necessity and the principle of humanity:
PRINCIPLE OF DISTINCTION, PROPORTIONALITY AND PRECAUTION

FUNCTION: To regulate and, especially, to limit or restrict the conduct of hostilities.

Hague Law -> 1899 and 1970 Conventions.

FUNCTION: To preserve the importance of victims and their suffering in IHL (not only
civilians, but also people who were participating in the war or in hostilities and they do
no longer do it).

Geneva Law -> 4 Conventions + two AP

PRINCIPLE OF DISTINCTION

*A fighter is anyone who takes active part in hostilities, not necessarily a combatant”.

This principle is going to establish 4 factors to distinguish who is a combatant or a

civilian:

1. Fighters are always required to distinguish between:

 Civilians and combatants. A combatant is a person that belongs to a party
in an armed conflict with the right to fight in it and, civilians, have special
protection in IHL.
 Civilian objects and military objectives. It is necessary to make a
differentiation between civilian objects and military objectives. Civilian
objects can never be objectives.
2. Fighters shall distinguish themselves from civilians.

For example, wearing uniforms. They cannot act as combatant with normal/regular
clothes as civilians.

3. Civilians cannot be used to render belligerents not targetable.

Human shields aren’t permitted. The use of civilian infrastructures cannot be used by
fighters in order to shield themselves (example: school) as a military advantage or
strategy because it violates the principle of distinction.
 Exception: When it is about a life-death issue and self-defence, it can be used as a
shelter, however, this rule applies to the moment in which civilian infrastructures are
used to gain military advantage.

4. Prohibition indiscriminate attacks

A basic general rule for IHL is the non-reciprocal nature of the rules and principles.
When a State violates a norm, others tend to follow. However, one violation does not
justify another. This type of indiscriminate attacks are not permitted and IHL is not
created to protect the interests of states, it is created to protect human life and identity.

PRINCIPLE OF PROPORTIONALITY

This principle enters into action once a legal target has been identified. So, the
proportionality principle starts once the principle of distinction has been respected. We
will be able to do an attack in accordance with the proportionality principle only when
there is a legitimate target.

However, what happens if the attack is expected to cause incidental damage to civilian or
civilian objects? You need to take into account the balance between the principle of
military necessity and the principle of humanity and decide: -call off the attack or carry
out the attack.

It highlights the importance of intelligence in armed conflicts

Excessive is the key word.

This principle is not stating that incidental damage is forbidden (incidental damage: loss
of human life and civilian ́s objects) BUT, it can't be excessive so that it doesn't weight
more than the military advantage.

If that incidental damage is excessive -> military advantage cannot be carried out. States
are obliged to gather all the information. So, it gives the parties the responsibility
according to IHL standards.

OBSERVER: International Community (IL) + ICRC ("watchdog" of the conflict).

IL has deficits in prevention, normally, it acts after something has already happened.
It also based in article 2 of UN Charter -> principle of good faith.

Zero-causality wars: objective.

PRINCIPLE OF PRECAUTION

Any clause/article established in a convention (or any other instrument) in order to make
the less incidental damages possible. Taking all precautions:

 In the decision to carry out an attack.

 In the choice of means (weapons).
 There are arms with more or less incidental
 In the choice methods (strategies).
 Aim of minimizing and/or avoiding this incidental damage (loss of civilian life or
injury of civilian objects)

GENERAL LIMITS: MARTENS CLAUSE AND CA3

What is not forbidden is not permitted.

We do not need necessarily need a provision to make a conduct not permitted.

Martens Clause and CA.3 -> “Elementary considerations of humanity”. They provide the
minimum requirements. Nothing below them.

GENERAL LIMITS: MARTENS CLAUSE

"Dictates of the public conscience".

Russian delegate -> Frederic Martents in 1899 Hague Peace Conference. The delegates
unanimously agreed to include it in the preamble to Hague Convention II 1899, with
respect to the laws and customs of war on land.

WHY? Because they knew that they had not produced a complete codification of IHL.

The clause has two main functions:

1. Prevents the use of the sovereignty argument. To prevent States from saying "I
have not accepted X norm, therefore, I can do whatever I want".
 2. Perpetuates humanitarian ideals: It reminds us that no matter what happens,
humanitarian ideals have to be taken into account.

Other functions:

3. Basis for interpretation of IHL.

4. Supports the application of IHRL to fill IHL gaps.
5. Reminds that customary IL applies.
6. Reminds States to consider the interests of the potential victims when negotiating
new IHL norms.

GENERAL LIMITS: CA 3

It is a mini convention to provide the minimum protection and it is presented in all Geneva
Conventions. It is applicable to NIACs.

All parties in a conflict have to comply with this minimum requirement. It is important
the use of the terms “each party”, we are not talking only about States, but about all kind
of parties. 4 main ideas:

 The principle of humanity without adverse distinction.

 A series of precise prohibitions.
 Duty to respect and protect the wounded and sick who shall be collected and cared
for.
 The customary right of humanitarian initiative possessed by impartial
humanitarian bodies, namely the ICRC, is recognized

PRINCIPLES OF HUMANITARIAN ACTION

They should not be mistaken with the principles of humanitarian action. Humanitarian
assistance must be provided in accordance with the principles of:

 Principle of humanity: life is sacred and it must be protected in all circumstances

(sacredness of human life).
 Principle of impartiality: Give assistance with no discrimination for any reason
(racial, ethnic, sex....).
 Principle of independence: No interests at any kind (economical, political...)
 Principle of neutrality: Humanitarian workers cannot put themselves on any side
of the conflict and parties.

They are not legal principles of IHL, but principles of organizations working in this field
-> thought for humanitarian workers
LESSON III. (PART IV). ARMED CONFLICTS AND GUIDING
PRINCIPLES OFINTERNATIONAL HUMANITARIAN LAW.

PROTECTION OF CIVILIANS, SPECIALLY PROTECTED PERSONS AND

VICTIMS

LEGAL INSTRUMENT: IV GENEVA CONVENTION

What do we already know about civilians?

 Any person who is not a combatant.

 Immunity from attacks.
 Loss of immunity if the person takes a direct part in fighting.
 Never have POW status.
 If we have any doubt regarding someone's status: civilian.

Civilians always need protection in wartime:

 Civilians cannot be targeted during warfare → Principle of distinction.

 Civilians protected when “in the hands on the enemy” (Specific protection). Main
goal: Protect civilians from arbitrary acts by the opposing forces.

Geneva Convention IV: Relative to the Protection of Civilian Persons in Time of War (12
August 1949)

Scope of applicability (article 4).

“Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of
a Party to the conflict or Occupying Power of which they are not nationals. Nationals of
a State which is not bound by the Convention are not protected by it. Nationals of a neutral
State who find themselves in the territory of a belligerent State, and nationals of a co-
belligerent State, shall not be regarded as protected persons while the State of which they
are nationals has normal diplomatic representation in the State in whose hands they are...”
INTERPRETATION OF ARTICLE 4

It also applies to "enemy civilians": those civilians under the control of the other
belligerent is called civilian enemy. Civilian enemy is a non-legal category.

WHY?

 They are thought to be in need of protection on account of their adverse allegiance.

 They cannot be protected by the normal mechanism of diplomatic representation.

“Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of
a Party to the conflict or Occupying Power of which they are not nationals:

 Enemy civilians.
 Stateless persons.
 Persons from neutral and third States without diplomatic protection.
 Persons whose loyalty lies with the adverse belligerent.

Exception to article article 4 (scope) -> Part II of the Convention.

 Applies to all civilians on the territories of the belligerents.

 General protection against consequences of war. (EXAMPLE: establishment of
safety zones)

PROTECTION OF CIVILIANS

Special protection due to:

-Vulnerability.

-Those civilians carry out an essential work for the protection of civilian and civilian
objects.

BUT, there is no such a thing as ABSOLUTE IMMUNITY FROM ATTACKS. It is lost

when they participate (in a direct manner) in hostilities. What is direct participation? If
that civilian causes harm.
Self-defense does not entail direct participation in hostilities. What about Ukraine? Set of
rules governing the protection of civilians:

1. General rules.
2. Rules apply to enemy civilians.
3. Rules that govern the situation of civilians finding themselves in occupied
territory.
1. General rules: Respecting the principle of humanity during contact with civilians.
 Respect for their persons, honor, family rights, religious convictions and practices,
and manners and customs. They shall at all times be humanely treated and shall
be protected especially against all acts of violence or threats thereof and against
insults and public curiosity.
 Women: especially protected against any attack on their honor, in particular
against rape, enforced prostitution, or any form of indecent assault.
 Without prejudice to the provisions relating to their state of health, age and sex,
all protected persons shall be treated with the same consideration by the Party to
the conflict in whose power they are, without any adverse distinction based, in
particular, on race, religion or political opinion.
 No protected person may be punished for an offence he or she has not personally
committed. Collective penalties and likewise all measures of intimidation or of
terrorism are prohibited.
 Pillage is prohibited.
 Reprisals against protected persons and their property are prohibited.
 The taking of hostages is prohibited.
2. Rules apply to enemy civilians (and other protected aliens) who find themselves
in the territory of a party to the conflict. Important:
 The right of such persons to leave the hostile territory.
 The question of their internment.
3. Rules that govern the situation of civilians finding themselves in occupied
territory.
 PEOPLE: Medical personnel, Religious personnel, Personnel and objects
involved in a peacekeeping mission, Journalists, War correspondents
 OBJECTS: Emblems, Protected zones, Cultural property, Natural
environment.
MEDICAL PERSONNEL

Personnel assigned, by a party to the conflict , exclusively to the search for, collection,
transportation, diagnosis, or treatment, including first-aid treatment, of the wounded, sick
and shipwrecked, and the prevention of disease, to the administration of medical units or
to the operation or administration of medical transports.

By a party to the conflict : includes MP who belong to a party to the conflict, whether
military or civilian and duly recognized and authorized by a party to the conflict. Such
assignments may be either permanent or temporary.

MP have to 3 important elements:

 Assigned by a party of the conflict either as civilians or militars.

 Perform: ONLY medical assistance
 MP have the right to use distinctive emblems: in IHL distinctive elements refer to
those recognise by the IVGC (mainly the Red Cross + others).

The protection of medical and relief personnel entails obligations for belligerents:

 Prohibition to use medical units to cover military objectives from attacks.

 Ensure (as far as possible) that medical units are not located in danger zones.
(Principle of distinction-obligation of separation-they cannot be targeted.)
 Obligation to consent to the entry, transit and distribution of aid.
 MP may not be obliged to carry out acts contrary to deontology.
 MP may not be obliged to provide information about the injured or sick assisted
when it could be harmful.

RELIGIOUS PERSONNEL

Personnel, whether military or civilian, who are exclusively engaged in the work of their
ministry and attached to a party to the conflict, to its medical units or transports or to a
civil defense organization.

Such assignment may be either permanent or temporary.

-Right to display distinctive emblems.

Rules regarding MP apply mutatis mutandis (equally) to religious personnel:

 Respect for and protection of religious personnel.

 Loss of protection of religious personnel.
 Equipment of religious personnel with light individual weapons.

PERSONNEL AND OBJECTS INVOLVED IN A PEACEKEEPING MISSION

Personnel and objects involved in a peacekeeping mission in accordance with the Charter
of the UN.

 Immunity from attacks because they are treated as civilians persons and objects.
 Only applies to peacekeeping forces, whether established by the UN or by a
regional organization.
 Excludes forces engaged in peace-enforcement operations who are considered as
combatants bound to respect IHL.

Blue helmets (peacekeepers of the UN) + easily recognized. Principle of distinction:

armed groups know that they are not combatants even if they are soldiers, they are not
combatants and they have civilian status.

States voluntarily provide military personnel to the UN for peacekeeping missions, they
wear their own uniform and the blue helmet (UN). The majority of the personnel of the
peacekeepers are from the Southern Hemisphere.

Peacekeeping operations are approved by the UNSC through resolutions adopted under
Chapter VII. Peacekeepers do not appear in the UN Charter: chapter 6 and a half of the
UN.

Peacekeeping operation do not have a combat mission. Forbidden use of force, Except:
1. there is a case of self-defense (to protect their own life). 2 To protect UNSC's mandate.
The truth is that in the last decade there has been the peace enforcement operations, the
mandate includes the capacity of use force. In this case, if they use force in favor of one
part of the conflict.

Peacekeeping operation do not have a combat mission. Forbidden use of force, except:

1. There is a case of self-defense (to protect their own life).

 2. To protect UNSC's mandate.

However, in the last decade, the mandate has included the capacity to use force in some
missions BUT, if they use force in favor of one part of the conflict, they become
combatants. Srebrenica is one of the main failures and shameful conducts of the UN
missions.

JOURNALISTS

Civilian journalists engaged in professional missions in areas of armed conflict. They

cannot be confused with war correspondents. They are granted immunity because they
are civilians. Regardless of their professional status (independent journalists or those
belonging to an agency or a media outlet).

WAR CORRESPONDENTS

Journalists who accompany the armed forces of a State without being members, BUT
with their authorization. They are not military personnel. No precise definition in IHL:
no specific mention in the GC or in the AP. They fall into the category of “persons who
accompany the armed forces without actually being members thereof”. Main difference
with journalists: POW status upon capture.

OTHER PERSONS AFFORDED SPECIAL PROTECTION: CHILDREN

They are entitled to the rights as other protected persons in respect of the principle of
humanity IHL does not prohibit the participation of children in armed conflicts in absolute
terms.

Convention on the Rights of the Child specific instrument: Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed conflict.

PROTECTION OF CIVILIANS: CHILDREN

IAC: “The Parties to the conflict shall take all feasible measures in
order that children who have not attained the age of fifteen years do
not take a direct part in hostilities and, in particular, they shall
refrain from recruiting them into their armed forces. In recruiting
 among those persons who have attained the age of fifteen years but
who have not attained the age of eighteen years, the Parties to the
conflict shall endeavor to give priority to those who are oldest.”
(Art.77.2 AP. I).

NIAC: [C]hildren who have not attained the age of fifteen years shall
neither be recruited in the armed forces or groups nor allowed to take
part in hostilities (Art.4.3.AP. II).

PROTECTIVE EMBLEMS

Objects / emblems entitled to special protection against attack:

 Must be visibly identifiable to the adverse belligerent in order to avoid being

targeted.
 During armed conflict, the emblem serves a protective function.
 Emblems make easier the identification. EXAMPLE: MP (he or she is protected
because of their function, BUT the emblems help with the identification).
 It is not compulsory to wear them, BUT they always do because they offer de
facto protection.
 To be effective: It must not be used with harmful purposes. Be commonly
accepted (recognised by the IVGC). Be large and visible.

General emblems:

Protecting those engaged in medical and relief action during warfare (also religious
personnel). Additional Protocol III of the Geneva Convention regulates the "Red
Crystal" (Cristal Rojo). The Red Crystal has the same international status as the Red Cross
and Red Crescent emblems.
First emblem 1864: clear neutral sign was needed on the battlefield to protect medical
staff and facilities.

Red Cross on a white background, the exact reverse of the flag of neutral Switzerland.
The resulting symbol had the advantage of being easily produced and recognizable at a
distance because of its contrasting colors.

“Red cross societies” and the use of the emblem became established.

Second emblem 1878 (Russo-Turkish war): the Ottoman Empire adopted

the red crescent while still recognizing and respecting the Red Cross.
Iran, their own emblem until 1980 (red lion).

Third emblem 2005: WHY? To avoid any national, political or religious

connotation.

Special emblems/non-general protective emblems:

Protecting particular objects. EXAMPLE: cultural property • Just letters: WP

PROTECTION OF VICTIMS

IN WHICH LEGAL INSTRUMENTS?

 Common Article 3.
 Geneva Convention IV relative to Civilian Persons in Time of War.
 Articles 11 and 75 of AP I: Relating to the Protection of Victims of International
Armed Conflicts.
 Articles 2 and 4 of AP II: Relating to the Protection of Victims of Non-
International Armed Conflicts.
 Article 8 of the Rome Statute.
LESSON IV. THEMEANS AND METHODS OFWAGING WAR
WHO IS PROTECTED BY IHL?

 Victims (civilians)
 Belligerents (secondarily and indirect purpose) HOW? By establishing
restrictions to the means and methods of warfare.

DEFINITIONS:

Means of warfare: Weapons or physical devices used in combat (material objects).

Methods of warfare: tactical or strategic devices designed to weaken the adversary such
as strategy or how combatants and belligerents act in combats (non-material aspects).

THREE BASIC IDEAS

1. No unlimited freedom to choose means and methods.

2. Prohibition to use those (means or methods) of a nature which will cause
unnecessary suffering or superfluous injury, not only to civilians but also to
combatants. "Cardinal principle of IL" Martens Clause: (Principles of humanity,
necessity, distinction, proportionality and precaution).
3. Overpower or weakening the military forces of the enemy is the only legitimate
object of war.
Overpowering means defeating. It is not permitted to eliminate all enemies.
DO WE HAVE A SPECIFIC LIST IN WHICH ALL PROHIBITED MEANS
AND METHODS ARE DETAILED? NO.
Art. 8 Rome Statute. (Partial list). It establishes certain behaviours, conducts and
weapons that are forbidden + Martens Clause. New kind of weapons are also
conditioned by this three premises.

PROHIBITED METHODS: Perfidy

UNLAWFUL DECEPTIONS /MISLEADING THE ENEMY

Acts inviting the confidence of an adversary to lead him to believe that he is entitled to,
or is obliged to accord, protection under the rules of international law applicable in armed
conflict, with intent to betray that confidence.
EXAMPLES:

 Intent to negotiate under a flag of truce or surrender.

 Incapacitation by wounds or sickness.
 Civilian, non-combatant status.
 Protected status by using signs, emblems, UN uniforms or other kind of neutral
symbols (such as the Red Cross

Three requirements are constitutive of perfidy:

1. An act of deception as to the applicability of a protection under IHL

2. With the aim of gaining a military advantage; and
3. When the military advantage consists in killing, injuring or capturing an
adversary.

PERFIDY ≠ RUSES (OF WAR).

Ruses (stratagems) are allowed -> deceiving the adversary on a point of fact in order to
gain a military advantage. As long as:

 Not violating a rule of IHL.

 Not appealing to the good faith of the adversary.

What’s the difference with perfidy? Its legal scope and also the objectives that motivate
each behavior.

EXAMPLES OF RUSES:

 Surprise attacks, ambushes, retreats etc.

 Simulated operations (land, air or sea)
 Simulating inactivity; camouflaging troops, weapons, depots.
 Taking advantage of the weather conditions (rain, fog, wind etc.) or day/night.
 Building infrastructure that will not be used.
 Transmitting misleading messages by radio/press.
 Knowingly permitting the enemy to intercept false documents, plans of
operations, dispatches or news items which actually bear no relation to reality.

SPY is forbiden, he/she loses the POW if they are captured. NOT accepted by any means.
PROHIBITED METHODS

DENIAL OF QUARTER (GUERRAS SIN CUARTEL):

It is based on the idea of killing everyone. No survivors.

OTHER PROHIBITION ON METHODS OF WARFARE: No attacks on persons out of

combat (hors de combat).

EXAMPLES:

 Clearly express his/her intention to surrender.

 Unable to defend himself/herself.
 Parachuting from an aircraft in distress.
 Medical assistance.

EXCEPTIONS: doing an act of hostility, trying to escape…

PROHIBITED MEANS

Their use is not only prohibited towards civilians, BUT in general (cannot be used against
combatants as well). TWO TYPES OF RULES:

 General: principles and rules which apply to all weapons and govern the
acceptability or unacceptability of their use.
 Specific: detailed conventions explicitly prohibit particular weapons or types of
weapons.
 Article 36 of Additional Protocol I places constraints on the development of new
weapons

IHL regulates the use of weapons but not their production or proliferation.

WHICH MEANS ARE PROHIBITED?

1. Those that make death inevitable. EXAMPLE: depression bombs, fuel-air

explosives.
2. Those that aggravate suffering. EXAMPLE: projectiles which fragment
themselves when they enter in the human body.
 3. Those that have indiscriminate effects. EXAMPLE: unguided missiles which are
fired at enemy territory; bacteriological weapon.

Most of them are prohibited by GC in IAC but not in NIACs. Prohibitions contained in
treaties and arms conventions (in IHL and IL):

 Expanding and explosive bullets;

 Poisoned weapons;
 Biological and bacteriological weapons;
 Chemical weapons;
 Weapons injuring by non-detectable fragments;
 Booby-traps; Landmines (under certain conditions);
 Incendiary weapons (under certain conditions);
 Blinding laser weapons;
 Antipersonnel mines;
 Cluster munition;
 WMD.

PROHIBITED MEANS: ANTIPERSONNEL MINES

WHY? Because nobody knows for how long are they going to be in "x land" or who
would suffer the consequences (the effects are indiscriminate).

Convention on the prohibition of the use, stockpiling, production and transfer of

antipersonnel mines and on their destruction (Otawa Convention, 1997). Huge concern
for the ICRC. Mines are designed to explode by presence, proximity or contact.

Anti-personnel mines: Kill/maim hundreds of people every week, mostly civilians.

Obstruct economic development and reconstruction.
PROHIBITED MEANS: CLUSTER MUNITION

They cause indiscriminate effects. The Convention on Cluster Munition was adopted in
Dublin by 107 States on 2008 It entered into force on 2010. To date, a total of 123 States
have joined the Convention – 110 States Parties and 13 Signatories
PROHIBITED MEANS: WEAPONS OF MASS DESTRUCTION (WMD)

These weapons (nuclear, biological and chemical (NBC)) cause indiscriminate effects.
International treaties:

 Chemical Weapons Convention (CWC) 1993-97.

 Biological Weapons Convention (BWC) 1972-1975.
 Non-Proliferation of Nuclear Weapons Treaty (NPT) 1968-70.

PROHIBITED MEANS: CHEMICAL

The Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on their Destruction

Chemical used to cause intentional death or harm through its toxic properties. Munitions,
devices and other equipment specifically designed to weaponize toxic chemicals also fall
under this definition.

EXAMPLE: mustard gas, nerve agents (sarin gas).

Organization for the Prohibition of Chemical Weapons (OPCW).

States Parties must submit:

 A declaration on chemical weapons to the OPCW.

 A detailed general destruction plan, with a schedule compatible with the
destruction time frames of the CWC. The Hague.

The OPCW received the Nobel

peace price “for its extensive
efforts to eliminate chemical
weapons" 2013
PROHIBITED MEANS: CHEMICAL AND BIOLOGICAL

Which is the difference between chemical and biological weapons?

 Biological: The ones that involve viruses and bacteria’s (natural ones).
 Chemical: The ones that are man-created.

PROHIBITED MEANS: BIOLOGICAL

Biological Weapons Convention (1972, 1975).

First multilateral disarmament treaty banning the development, production and

stockpiling of an entire category of WMD. Biological weapons act on the human life
system and are often developed from living organisms like viruses or bacteria.
EXAMPLE: anthrax.

Absolute ban: biological (and chemical) weapons in IHL.

PROHIBITED MEANS: NUCLEAR

The most dangerous weapons on earth. Only used twice in history: Hiroshima and
Nagasaki (1945). No comprehensive and universal prohibition on the use of nuclear
weapons UNTIL the Treaty on the Prohibition of Nuclear Weapons (TPNW) (2017-
2021). Main concerns:

 Destructive power.
 Human suffering + long-lasting consequences to civilians.
 Impossibility to control their effects in space and time.
 Threat to the environment and to future generations.
 Risks of escalation.
PROHIBITED MEANS: NUCLEAR-WEAPON FREE ZONES (NWFZ)

Regional approach to strengthen global nuclear non-proliferation and disarmament norms

and consolidate international efforts towards peace and security. Article VII of the
Nuclear Non-Proliferation Treaty (NPT) states: “Nothing in this Treaty affects the right
of any group of States to conclude regional treaties in order to assure the total absence of
nuclear weapons in their respective territories“.

General Assembly resolution 3472 (XXX) (1975) B defines a Nuclear-Weapon-Free

Zone as:

"any zone recognized as such by the GA which any group of States, in the free exercises
of their sovereignty, has established by virtue of a treaty or convention whereby: (a) The
statute of total absence of nuclear weapons to which the zone shall be subject, including
the procedure for the delimitation of the zone, is defined; (b) An international system of
verification and control is established to guarantee compliance with the obligations
deriving from that statute.

PROHIBITED MEANS: NUCLEAR

Special status to ICJ advisory opinion (1996) on the Legality of the threat or use of nuclear
weapons

An advisory opinion is not a judgement, it is an opining with not binding obligations but
since they are enacted from the ICJ, there is a "moral obligation" to comply with them +
this opinion is normally asked by the SC or the GA.

QUESTION: IS IT ALLOWED TO USE NUCLEAR WEAPONS UNDER ART. 51?

CONCLUSION: There wasn’t such a prohibition to use or threat to use nuclear weapons
when we are dealing with the survival of the State. Judges were divided, the president had
to break the tie.

WHY?

ICJ made a distinction between IHL (ius in bello) and IL (ius ad bellum).

IHL: Prohibited due to the principles of proportionality, precaution and necessity

(indiscriminate attacks, no respect for environment).

IL: Not prohibited in the case of self-defense, when it is extremely necessary for the
survival of the State. There is a practice (customary law) against nuclear weapons +
treaties BUT, no opinio iuris (no willingness of States). Nuclear weapons as a tool for
deterrence (which is working to avoid nuclear war).

Why there is not a prohibition? (in IHL treaties)

 Long-established political doctrine of nuclear deterrence.

 The question of the legality of nuclear weapons was left out of the deliberations,
as a precondition to the participation of the nuclear powers in the Conventions.
  During negotiations, nuclear States insisted that the rules could not be used to
imply the illegality of nuclear weapons.
 Some international instruments on the prohibition of nuclear weapons:
Treaty on the Non-Proliferation of Nuclear Weapons of 1968 (NPT).
Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And
Under Water, a.k.a. the Partial Test Ban Treaty of 1963 (PTBT).
Comprehensive Nuclear-Test-Ban Treaty of 1996 (CTBT), not yet in force.
Treaty on the Prohibition of Nuclear Weapons 2017 (TPNW)

TREATY ON THE NON.PROLIFERATION OF NUCLEAR WEAPONS (NPT):

Objective: preventing the spread of nuclear weapons and weapons technology; to promote
cooperation in the peaceful uses of nuclear energy and to further the goal of achieving
nuclear disarmament and general and complete disarmament.

A. Non-nuclear-weapon States parties commit not to manufacture or acquire nuclear

weapons or other nuclear explosive devices. .
B. Nuclear-weapon States parties commit not to assist, encourage or induce any non-
nuclear-weapon to manufacture or acquire nuclear weapons or other nuclear
explosive devices.

Who are the nuclear-weapon

States parties? USA, France,
China, Russia, UK, Russia,
Israel, North Korea, India and
Pakistan.
LESSON V. THE STATUTE AND PROTECTION OFWAR VICTIMS

THE FUNDAMENTAL GUARANTEES OF CIVILIANS AND THOSE OUT OF

COMBAT

 Fundamental guarantees are in:

 Article 3 common to the four Geneva Conventions.
 IV Geneva Convention relative to civilians in times of war.
 Articles 11 and 75 of Protocol I.
 Articles 2 and 4 of Protocol II.
 Article 8 of the Rome Statute.
 Prohibition of discrimination, the right to honor and family life, respect for
freedom of conscience and religion.
 Respect for the right to life and prohibition of torture, inhuman and degrading
treatment.
 Prohibition of mutilations and medical or scientific experimentation.
 Prohibition of sexual assault and rape.
 Prohibition of slavery, forced labor, human trafficking, and illegal human
smuggling.
 Prohibition of hostage taking and the prohibition of enforced disappearances.
 Arbitrary prohibition of liberty, the right to a fair trial and the principle of legality.
 Prohibition of deportation and forced transfers.

Specially protected people: women, children, refugees and stateless persons

WOMEN IN IHL:

In relation to women, the principle of non-discrimination is established, so IH grants them

the same protection as men. However, throughout the Geneva Conventions and their
Protocols a series of specific protection measures are established.

In addition, the parties in the conflict will seek to avoid the imposition of the death penalty
on pregnant women and mothers with young children in their care for crimes related to
the conflict.
+ Children (vulnerable group): Out of the 43 articles which mention women in the Geneva
Conventions + AP, 19 are made for "women and children".

CHILDREN IN IHL:

Limitation on the recruitment of "child soldiers":

Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict (1989) establishes:

Minors under the age of 18 cannot be forcibly recruited into the armed forces or armed
groups; States parties will ensure that no one under 18 years of age is compulsorily
recruited into their armed forces; IHL -> 15

Both recruiting and enlisting are forms of recruitment consisting of the incorporation of
a person into an armed force or armed group, either by coercion (recruitment) or
voluntarily (enlistment).

It can be difficult to distinguish between voluntary and forced recruitment in the case of
children under the age of 15, particularly as such individuals may be unable to give
sufficiently informed consent when enlisting in an armed force or group.

STATUS OF REFUGEES AND STATELESS PERSONS IN ARMED CONFLICTS

The status of refugees is essentially regulated within the framework of human rights and
the national policies adopted in its development, including the policies assumed by
competent international organizations in the matter, such as the EU.

Article 78 of the Treaty on the Functioning of the EU.

Article 18 of the Charter of Fundamental Rights of the Union.

Convention on the Status of Refugees (1951) and its 1967 New York Protocol

Grant status to any person who, due to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a social group or political opinion, is outside
the country of their nationality and cannot, or because of said fears, does not want to avail
themselves of the protection of that country; or who lacking nationality and being, as a
consequence of such events, outside the country where they previously had their habitual
residence, said fears, does not want to return to it.

In no case may that State transfer a protected person to another country where they may
fear persecution for reasons of their political or religious opinions.

PRISIONERS OFWAR STATUS (POW)

The combatants that are captured have the status of prisoners of war. Combatants must
distinguish themselves from the civilian population when they are participating in an
attack or in a military operation prior to the attack. If they do not, they are not entitled the
POW.

A person captured who has committed an act of war, it corresponds to a competent court
to determine his/her status.

There is a detailed regulation regarding accommodation, food, clothing, hygiene, medical

assistance and religious assistance, including the issue of medical and religious personnel.

The following issues should be highlighted:

Prisoners are only obliged to give their name, rank, date of birth, and serial number (aka
identity card).

All war prisoners must be treated alike by the detaining power

Questioning is not prohibited, but the III GC states that “no physical or mental torture, or
any other form of coercion, may be inflicted on prisoners of war to secure from them
information of any kind whatever”.

War prisoners may not be deprived of their personal belongings. The detaining power
may hire those prisoners as workers, taking into account their state of health, as well as
their age, sex, and rank and for non-military purposes.

War prisoners must be evacuated, as soon as possible, to camps situated away from the
combat zones. Such evacuation must be carried out humanely.

Provide every guarantee of hygiene and healthfulness and take into account climate
conditions.
War prisoners who are seriously wounded or suffer from specified diseases must be
repatriated directly back to their own country or to a hospital in a neutral State.

War prisoners shall be released and repatriated without delay after the cessation of active
hostilities.

The costs of repatriation of prisoners of war shall in all cases be equitably apportioned
between the Detaining Power and the Power on which the prisoners depend.